Bezanson v. Doe

2025 BCSC 184 Bezanson v. Doe

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bezanson v. Doe, 2025 BCSC 184 Date: 20250205 Docket: M1910995 Registry: Vancouver Between: Jamie Bezanson Plaintiff And John Doe, Jane Doe, and the Insurance Corporation of British Columbia Defendants Before: The Honourable Justice Kirchner Reasons for Judgment Counsel for the Plaintiff: C. McIvor Counsel for the Defendants: D. Devine Q. Chen Place and Dates of Trial: Vancouver, B.C. January 8-10, 2025 Place and Date of Judgment: Vancouver, B.C. February 5, 2025 Table of Contents Background.. 3 The Accident. 3 Mr. Bezanson's Version of the Accident 4 ICBC's Theory. 5 Analysis. 5 ICBC's Theory. 5 Mr. Bezanson's Version. 7 Conclusion.. 16 Background [1] The plaintiff, Jamie Bezanson, sues for damages he suffered in a motorcycle accident on November 1, 2017. Liability for the accident is in dispute. By consent order made by Associate Judge Vos at the Trial Management Conference, liability has been severed for trial from damages. I am dealing only with liability. [2] The accident occurred in East Vancouver on Nanaimo Street near St. Lawrence Street. Mr. Bezanson was travelling southbound on Nanaimo on his motorcycle. He was unable to control the bike as he approached a curve in road. He crossed a centre median on Nanaimo Street and collided head-on with a northbound vehicle. He sustained very serious and long-lasting injuries. [3]

At issue is what caused Mr. Bezanson to lose control of the bike. He claims he was forced to make an evasive maneuver to avoid being hit by a pick-up truck that entered Nanaimo Street from the east and turned left to go southbound, the same direction he was travelling. He says that maneuver ultimately forced him across the median and into the oncoming traffic. The defence argues that Mr. Bezanson was operating his motorcycle in an unsafe and aggressive manner and it was his own actions that caused the accident. [4] The driver of the pick-up has never been identified or located and is named as a defendant in these proceedings as "John Doe" or "Jane Doe". The Insurance Corporation of British Columbia (ICBC) is defending the case. In addition to arguing that the accident was Mr. Bezanson's fault alone, it also argues he has failed to make reasonable efforts to locate the pick-up truck pursuant to s. 24(5) of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c.

231. The Accident [5] Mr. Bezanson, an experienced motorcycle rider, was riding his Harley Davidson home from the Longshoremen's Hall just before 5:00 p.m. on November 1, 2017. He was travelling south on Nanaimo Street, a route he had taken almost every day for over 30 years. He knew the road well. The sky was overcast but it was not raining and the road was dry. He was approaching what he now believes was "probably" Brock Street but could possibly have been East 29th Avenue as alleged in the notice of civil claim. Both Brock Street and East 29th intersect with Nanaimo from the east in T-intersections. Brock Street is one block south of East 29th. [6] That segment of Nanaimo Street is a four-lane arterial road. Brock and East 29th are both residential streets. There are stop signs on both Brock and East 29th for westbound traffic approaching Nanaimo Street. One block south of Brock is St. Lawrence Street, another residential road that enters Nanaimo from the east at a T-intersection. Just north of St. Lawrence, Nanaimo Street begins to curve to the west. A median divides north and southbound Nanaimo Street traffic starting just south of the St. Lawrence intersection and continues south to Kingsway. This is the median that Mr. Bezanson crossed. Mr. Bezanson's Version of the Accident [7] Mr. Bezanson said he was travelling in the curb lane at the posted speed limit of 50 km/h,

intending to continue on Nanaimo Street towards his home on East 53rd Avenue. He says as he neared the T-intersection at Brock Street or possibly East 29th, a pick-up truck came out of that street and turned left in front of him, also to travel south on Nanaimo Street. He said as the pick-up truck entered the southbound lanes on Nanaimo Street it immediately began to drift from the left southbound lane into the curb lane, cutting Mr. Bezanson off. He said the truck straddled the two lanes and it seemed the driver was indecisive about which lane to use but appeared to be moving into the curb lane where Mr. Bezanson was riding. He said he had to slow his bike down to avoid being pushed into the curb or a parked car or otherwise being hit by the truck. He tried to go around the pick-up truck to get in the left lane but by the time he straightened his bike out in the left lane, Nanaimo Street had begun to curve to the right and it was too late for him to negotiate that curve. His motorcycle crossed a median, missed hitting one oncoming northbound car, and ran head-on into a second northbound vehicle - a Toyota FJ Cruiser - travelling behind the first car. He suffered serious injuries including multiple fractures and a detached bladder. He required emergency surgery and remained in hospital for several weeks. ICBC's Theory [8] ICBC's theory is the accident was caused by Mr. Bezanson

losing control of his motorcycle after he threw a plastic water bottle at another car in an apparent act of road rage. It suggests this action caused Mr. Bezanson to lose control of the bike. ICBC also argues that even if Mr. Bezanson did not throw an object and his account of the pick-up truck turning left is true, his response was not an evasive maneuver to avoid a collision but an aggressive and unnecessary one to dangerously pass the pick-up truck on the left after it had entered to flow of traffic on Nanaimo Street. Analysis ICBC's Theory [9] I will first address ICBC's theory about the water bottle. It hinges on the evidence of Paul Griffin who was driving the northbound Toyota FJ Cruiser on Nanaimo Street that collided with Mr. Bezanson. Mr. Griffin was coming home from work with his spouse in the passenger seat and their new baby in a car seat in the back. He testified that as he approached the intersection at St. Lawrence, he saw Mr. Bezanson on his motorcycle travelling in the opposite direction. He was focused on the traffic ahead of him but recalls seeing Mr. Bezanson throw something from his bike that he believed may have been a water bottle. He said Mr. Bezanson then lost control, crossed median, and crashed into his vehicle. [10] Mr. Griffin gave a statement to police at the scene of the accident in which he did not mention the water-bottle throwing incident.

Counsel for Mr. Bezanson argues that is a significant detail for Mr. Griffin to have omitted. He argues Mr. Griffin's evidence is neither credible nor reliable and suggests Mr. Griffin read the account about the water bottle in another witness' statement and has now incorporated it into his own narrative. He also argues Mr. Griffin is motivated to see Mr. Bezanson found fully liable because his spouse is the plaintiff in another action in which she is seeking damages for this same accident. [11] The witness statement that counsel suggests influenced Mr. Griffin's evidence was given to police by Colin Steele at the scene of the accident. Mr. Steele reported that he was driving south on Nanaimo Street behind Mr. Bezanson and saw him raise his arm and throw what appeared to be a water bottle at a car to his right. His statement says Mr. Bezanson then lost control of the bike and crashed. Mr. Steele passed away before trial so I did not have the benefit of his testimony. His statement to police was not tendered for the truth of its contents but was put to Mr. Bezanson in cross-examination who denied that version of events. [12] Based on Mr. Steele's statement to police, Cst. Kirk Lee, the lead police investigator of the accident, issued a violation ticket to Mr. Bezanson for driving with undue care and attention. Mr. Bezanson contested the violation and shortly before that hearing,

Mr. Steele evidently changed his account of the accident. Cst. Lee testified that the charge could not be supported without Mr. Steele's original account so it was stayed. [13] I do not accept Mr. Griffin's evidence that he saw Mr. Bezanson throw an object from his bike. I agree with counsel for Mr. Bezanson that it is highly improbable that Mr. Griffin would have omitted this material element of his narrative when he gave his statement to police at the scene of the accident. It is reasonable to expect Mr. Griffin would have seen Mr. Steele's statement in the course of dealing with his wife's court action (in which Mr. Griffin himself was initially named as a defendant) and adopted it into his own narrative, perhaps subconsciously. Further, I doubt that Mr. Griffin had a clear view of Mr. Bezanson before he lost control of the bike given the curve in Nanaimo Street and Mr. Griffin's own focus on the traffic ahead of him. [14] As Mr. Griffin was the only witness to give evidence about the alleged water-bottle-throwing incident, I find there is no evidentiary support for ICBC's theory that it caused the accident. Mr. Bezanson's Version [15] As for Mr. Bezanson's version of the accident, I find he has not proven on a balance of probabilities that the driver of the pick-up truck caused him to cross the median and collide with Mr. Griffin's Toyota FJ Cruiser. Rather, I agree with

ICBC that Mr. Bezanson's response to the pick-up truck was unnecessarily aggressive and not evasive. [16] I accept that the pick-up truck, as Mr. Bezanson described it, was a hazard to him. It was a potential hazard when it began making a left-hand turn onto Nanaimo Street while Mr. Bezanson was travelling in the southbound curb lane. At that point, it was only a potential hazard because, as Mr. Bezanson said, it had the unobstructed left lane to enter into on Nanaimo Street. Had it gone into that lane and stayed there, it would not have become a true hazard to Mr. Bezanson in the curb lane. However, once it started drifting into the curb lane, it became a clear hazard to Mr. Bezanson who was the dominant driver (or rider) in that lane. At that point, the pick-up was in the wrong for entering Mr. Bezanson's lane. [17] In these circumstances, Mr. Bezanson had a duty to avoid a collision if he had sufficient opportunity to do so. As the Court of Appeal explained in Pacheco (Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (B.C.C.A.): [18] In my opinion, when a driver in a servient position disregards his statutory duty to yield the right of way and a collision results, then to fix any blame on the dominant driver, the servient driver must establish that after the dominant driver became aware, or by the exercise of reasonable care should have become aware, of the

servient driver's own disregard of the law, the dominant driver had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself. In such circumstance any doubt should be resolved in favour of the dominant driver. [Emphasis added] [18] In my view, Mr. Bezanson had the opportunity to avoid a collision and he took that opportunity by slowing down and backing off from the pick-up. That was enough to avoid a collision. However, he then attempted to go around the pick-up truck by moving into the left-hand lane. It was this maneuver that caused him to miss the curve in Nanaimo Street and cross the median. As I will now explain, I find that maneuver was unnecessary and was not done to avoid a collision with the pick-up. I base this conclusion on a careful analysis of Mr. Bezanson's evidence. [19] Mr. Bezanson's exact description of the accident is as follows (with my emphasis): A. I was heading southbound. I was in the curb lane heading south. A vehicle -- a pick-up truck -- kind of came out from the left I guess from -- I believe it probably -- now after the accident and looking back at the streets and whatever, I guess it probably would have been Brock. Came out and took a left on Nanaimo heading southbound. He didn't stay in his lane. He kind of did a two-lane drift and started coming towards me. So I had to slow down

otherwise I believe he may have pushed me into a curb or a parked car or hit me. So I slowed down, tried to go around into the other lane because he was kind of taking over my curb lane, and as I started straightening out he was still straddling the line and by the time I got around into my lane, well the road was starting to wrap around and I just didn't make it. Q. When you say the road started to wrap around what did you mean by that? A. Just prior to -- before Kingsway, Nanaimo has a bend. It kind of swerves off to the right and there is a meridian or a median, whatever, starting right there separating the northbound and southbound and, well, it was just prior to that bend is where he came out so by the time I got to the other lane I was paying more attention to the vehicle as opposed to the road and I pretty much just went straight and couldn't make the bend. Q. When you say you couldn't make the bend, what specifically do you mean by that? A. I just didn't have enough time. Like the road had turned and I wasn't -- when I got to the other lane, and straightened my bike out the road had already started wrapping around -- I guess -- around the bend -- and I just -- when the time I got there it was too late. There was no lane. It was just -- I couldn't make the corner. I pretty much -- I went straight. I couldn't stop. I didn't have time. [20] Several important points emerge

from this description. First, Mr. Bezanson is not certain that the pick-up truck entered Nanaimo Street from Brock Street. He believes, after some reflection, that it "probably would have been Brock". However, the notice of civil claim, which was filed two years after the accident, states unambiguously that the pick-up truck "turned left onto Nanaimo Street southbound from East 29th Avenue westbound, directly in front of the plaintiff's motorcycle" [emphasis added]. Thus, Mr. Bezanson's reconsideration of the street appears to have come more than two years post-accident. [21] The correct street makes a difference. While the blocks are somewhat irregular at this point along Nanaimo, East 29th Avenue appears to be about one city block's distance north of Brock Street. There is a much shorter distance between Brock Street and St. Lawrence Street where the median begins. The time between the pick-up truck entering Nanaimo Street to the time Mr. Bezanson crossed the median at St. Lawrence would be quite different depending on whether the pick-up entered from East 29th or Brock. [22] Mr. Bezanson suggested, albeit with some uncertainty, that the whole incident occurred in a matter of about 10 seconds from start to finish. He said: From the time he hit Nanaimo Street to the time I hit the car was probably -- I don't even know -- I can't even -- under ten seconds. Maybe ten seconds, I

don't know. [23] It is not unusual for a witness to misstate - and expand - the time in which an accident occurs when they recount the event in their testimony. What actually happened in a split second can grow to a few seconds in a witness' mind when parsing the details in testimony. However, Mr. Bezanson confirmed at least twice after this initial estimate that the event was around, but no more than, ten seconds from start to finish. That is a fairly long time to react in the context of a motor vehicle accident. In fact, half that amount would still be a significant time to react. [24] Mr. Bezanson said he was moving at 50 km/h when the pick-up entered Nanaimo Street and he agreed in cross-examination that he slowed to about 40 km/h as he backed off. Even at that rate of speed, if the pick-up truck had entered Nanaimo from Brock Street the whole incident would have occurred in considerably less than 10 seconds. If it entered from East 29th Avenue, the additional one block's distance would likely bring the event closer to the ten seconds Mr. Bezanson estimated. [25] In my view, this suggests: a) It is more likely that the pick-up came out of East 29th Avenue as initially stated in the notice of civil claim rather than Brock Street as Mr. Bezanson later came to believe; and b) Mr. Bezanson had a considerable time to react given that ten seconds (or even five seconds) is a

relatively long stretch in the context of a motor vehicle accident. [26] A second point that stands out in Mr. Bezanson's description of the accident is that he slowed down to avoid the hazard of being forced into the curb by the pick-up truck drifting into the curb lane. This put Mr. Bezanson behind the pick-up truck as he described further in his direct examination: Q. As you were travelling southbound on Nanaimo, when you saw that other vehicle come from Brock St. did you consider aggressively braking your motorcycle? A. At first, no. Q. Why not? A. There was no need to. Until at least - I'm in that [curb] lane. He's got all that left lane to make his turn into. Until he started drifting into my lane that's when I stopped with my brake. Q. How soon after he had turned onto Nanaimo did he encroach into the curb lane? A. Immediately. Like he pretty much just turned the corner. He didn't stay in his lane. He immediately started drifting into my lane. Q. At that moment when you saw him start to drift into your lane, what exactly did you do? A. That is when I slowed down, backed off. And then he basically continued riding the line in front of me in my lane. That's when I went around to get in the other lane. And when I went around into the other lane, that's pretty much when the bend started. So when I got to the other lane, the road was already wrapping around. So when I got

around him, I was straight but the road wasn't. [Emphasis added] [27] Thus, Mr. Bezanson was able to slow down enough to get behind the pick-up truck, which was in front of him, straddling the lane markers. This put Mr. Bezanson out of the way of the hazard presented by the pick-up truck drifting into his lane. [28] Notably, Mr. Bezanson did not suggest he was at risk of rear-ending the pick-up truck when it was in front of him or at any time during the incident. The only hazard he identified was the risk of being forced or pushed into the curb or a parked car as the pick-up truck drifted into his lane while it completed its turn onto Nanaimo Street. That hazard was avoided by Mr. Bezanson slowing down and backing off. Since there was no evidence of a risk of Mr. Bezanson running into the pick-up truck from behind, he was no longer at risk from the pick-up once he backed off and there was no need for him to aggressively brake in response to the hazard. [29] However, Mr. Bezanson's avoidance maneuver did not end there. He continued by trying to "go around" the pick-up and get into the left-hand lane. I am unable to find any reason why that maneuver was necessary to avoid the hazard created by the pick-up truck. This point was explored with Mr. Bezanson in cross-examination: Q. If we think of the term "going around" when you say "going around" another vehicle, is it your evidence

that going around someone can also mean you are behind them the whole time? A. No. Well, I attempted to go around in that situation, didn't make it. Q. Let's just think about "going around" for a second because I really want to nail this down because you're telling me that my idea of "going around" and your idea of "gong around" are two different things. I just want to nail it down. So when you say -- if you are on a motorcycle and you are going around another vehicle, is it still possible if you are going around someone to be behind them the whole time? A. The whole time? No. Q. So you agree with me that going around someone means catching up with them, where you would be beside them and eventually overtaking them? A. [inaudible] The Court: I didn't hear that answer. A. Technically, yes. I think that's what I said. Q. So you agree with me on that and you told me in discovery you said "I was gong around him"? A. Trying, yes. I guess. Q. Were you going around - as we have already agreed on what a definition of what going around is - were you going around the pick-up truck? A. I have already told you several times. I tried to go around him. I didn't get around him. I tried to get into the other lane to avoid it and that's when I went over the meridian. Q. So your intention -- is it your evidence today your intention to go around him but you couldn't do it by the time. You didn't

go around him by the time you hit the meridian. Is that your evidence? A. Probably that was my intention but I didn't -- he wasn't -- still -- I didn't know what lane he was in so I couldn't go around him. I wasn't sure what lane he was in. That would have been my intention -- to get out of this lane and go around, yes. Q. Okay, so you went into the left lane. Your intention was to go around the pick-up truck, but you were not able to go around the pick-up truck when you hit meridian. Is that correct? A. That's pretty [inaudible]. Q. We agree on that? A. Sure. [30] Thus, Mr. Bezanson slowed his motorcycle and "backed off" to avoid being forced into the curb or a parked car or being hit by the truck. Having backed off with the pick-up truck "riding the line in front of me", he was now behind the pick-up truck and no longer at risk of a collision. It was still unknown which lane the pick-up would travel in. In my view, a reasonably skillful and careful rider in those circumstances would not attempt to overtake the pick-up truck in the left lane but rather would hang back and wait for the pick-up truck driver's intentions to become clear. [31] I can find no reason why it would have been necessary for Mr. Bezanson to get into the left lane to avoid the hazard of being forced towards the curb by a vehicle drifting into the curb lane from his left. It was sufficient for him to simply

back off. [32] After the above exchange in cross-examination, Mr. Bezanson purported to clarify what he meant by the term "go around" and said he was "avoiding" the pick-up truck. However, even with that clarification I am not able to find there was anything for Mr. Bezanson to avoid once he backed off. His maneuver into the left-hand lane was not necessary to avoid a collision or a hazard. [33] I appreciate that motorcyclists are much differently situated than drivers of cars. They lack the protections offered by the steel frame, seat belts, and air bags of a car and, with that vulnerability, they may view hazards differently than other users of the road might. However, even through that lens I can see no reason why it would have been necessary or reasonable for Mr. Bezanson to quickly maneuver himself into the left lane to avoid the hazard. [34] I also appreciate that decisions taken by drivers and especially motorcyclists in a split second to avoid a collision cannot be nicely parsed with the benefit of hindsight to assess whether it was the best response. Decisions made in the "agony of the moment" to avoid a collision must be given some latitude: Biggar v. Enns, 2017 BCSC 2290 at para.

49. Here, however, I find Mr. Bezanson was not ensconced in the agony of the moment. The incident occurred over the course of about, but no more than, 10 seconds which, as noted, is a fair bit of time to react to a driving hazard. [35] Mr. Bezanson bears the onus of establishing on a balance of probabilities that his injuries were caused by the negligence of the defendant, here John or Jane Doe, the unidentified driver of the pick-up truck. He must show that it was both the factual cause of the injuries and the legal cause: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 11. [36] With respect to the factual cause, the primary test is whether the plaintiff would have suffered the injury "but for" the defendant's negligence. There must be a substantial connection between the plaintiff's injury and the defendant's conduct: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23; Zenone v. Knight, 2024 BCCA 200 at para.

55. The defendant's negligence need not be the sole cause of the injury so long as it is a necessary cause: Emil Anderson Maintenance Co. Ltd. v. Taylor, 2024 BCCA 156 at para.

130. Causation need not be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458, 1996 CanLII 183 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at para. 9. [37] With respect to legal causation, the plaintiff must prove that the defendant's negligence was a proximate cause of the loss, the damage was not too remote from the factual cause, or the damage suffered was reasonably foreseeable: Borgfjord v. Boizard, 2016 BCCA 317 at para.

56. The relevant inquiry is whether the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable: Mustapha at paras. 11-12. [38] For the reasons I have outlined, I am not persuaded the pick-up truck driver's negligence was a cause of the accident. Mr. Bezanson's decision to quickly move into the left lane was not taken to avoid a collision or done in the agony of the moment. Rather, I find he reacted with unnecessary aggression to a driver that was straddling two lanes. He removed himself from the hazard when he backed off but then he unnecessarily tried to go around the pick-up by swerving into the left lane. I find this was not done to avoid a collision and it was that maneuver that put him in a position where he was unable to negotiate the curve in Nanaimo Street, resulting in the collision. It was the factual cause of the accident. [39] I also find that while the driver of the pick-up truck was negligent in drifting into the curb lane while completing the turn onto Nanaimo Street, that negligence was not the legal cause of the accident. It is foreseeable that drifting into the curb lane could have forced Mr. Bezanson into the curb or a parked car, causing him injury. It is also foreseeable that he could be compelled to respond to that hazard in a manner that might cause him injury. For example, as Mr. Bezanson said, if he had been forced to

aggressively brake his bike he might have flown over the handlebars. However, it is not reasonably foreseeable that a motorcycle traveling in the curb lane would seek to avoid the hazard presented by the pick-up truck drifting into the curb lane by attempting to go around the truck and into the left lane. [40] In Borgfjord, one of the defendants was driving a camper truck in the left lane on the Coquihalla Highway well below the posted speed limit. She was attempting to pass a tractor-trailer in the centre lane moving slower than she was. That tractor-trailer was attempting to pass an even slower tractor-trailer in the right lane. An SUV, whose driver was a plaintiff in one action and a defendant in another, came upon this scene from behind travelling at approximately 125 km/h. The SUV driver made several aggressive lane changes in an effort to get past all three vehicles, clipped one of the tractor-trailers, and spun out of control causing a multi-vehicle collision. He was found liable for the accident but the trial judge also found the driver of the camper truck was contributorily negligent failing to drive as fast as reasonably possible in the left lane while trying to overtake the tractor-trailer. The trial judge reasoned that this action impeded the left lane for an unduly long time and the accident could have been avoided if camper truck driver had travelled at a faster

speed and given up the passing lane sooner. [41] The Court of Appeal set aside that aspect of the trial judgment. It held that even if the driver of the camper truck had breached the standard of care by driving too slowly, her actions were neither the factual nor legal cause of the accident. For legal causation, the court found the pick-up truck driver's conduct was not a proximate cause of the accident. Speaking for the Court, Justice Savage said: [86] in my view, once Mr. Thue [the SUV driver] saw the Boizard Camper travelling in the left lane, the risk of injury from Mrs. Boizard's conduct ceased to be a proximate (or reasonably foreseeable) cause of the accident. That is because, having seen the slower-moving vehicle, it was open to Mr. Thue to simply slow to match its speed. [Emphasis added] [42] I find the same to be true of Mr. Bezanson's conduct. While it was not nearly as aggressive as the SUV driver's conduct in Borgfjord, it was equally unnecessary to respond to the hazard presented. Just as the SUV driver could have managed the hazard by slowing down, so too could Mr. Bezanson. In fact, that is exactly what he did and at that point, the pick-up truck ceased to be a proximate cause of the accident. Mr. Bezanson then caused the accident by making the unnecessary maneuver to go around the pick-up which led to him crossing the median into oncoming traffic. I find the

mode of the accident was not a reasonably foreseeable consequence of the pick-up driver's breach of the standard of care in drifting into the curb lane. Conclusion [43] For these reasons, I find the collision was not caused in fact or law by the pick-up truck entering Nanaimo Street and drifting into the curb lane. In light of that conclusion, it is unnecessary for me to address ICBC's arguments based on s. 24(5) of the Insurance (Motor Vehicle) Act. I dismiss the plaintiff's claim with costs to the defendant. "Kirchner J."